Queensland: Criminal Proceeds Confiscation Act 2002 (Qld)

Criminal Proceeds Confiscation Act 2002 An Act to provide for the confiscation of the proceeds of crime and property connected to persons convicted of particular serious drug offences, the payment to the State of unexplained wealth, and for other purposes Chapter 1 Introduction 1 Short title This Act may be cited as the Criminal Proceeds Confiscation Act 2002. 2 Commencement (1) This Act, other than the following provisions, commences on 1 January 2003— (a) chapter 12, part 4; (b) section 283 and schedule 3, items 49 and 50; (c) section 339 and schedule 4, to the extent the schedule amends the Trustee Companies Act 1968. (2) Schedule 3, items 49 and 50 are taken to have commenced on 1 January 2002. (3) The following provisions commence on assent— (a) chapter 12, part 4; (b) section 283; (c) section 339 and schedule 4, to the extent the schedule amends the Trustee Companies Act 1968. 3 Definitions The dictionary in schedule 6 defines particular terms used in this Act. 4 Objects (1) The main object of this Act is to remove the financial gain and increase the financial loss associated with illegal activity, whether or not a particular person is convicted of an offence because of the activity. (2) It is also an important object of this Act— (a) to deprive persons of the following— (i) illegally acquired property, tainted property and benefits derived from the commission of offences; (ii) the benefits derived from contracts about confiscation offences; (iii) wealth that persons can not satisfy a court was lawfully acquired; and (b) to deter persons from committing serious criminal offences, including by increasing the financial risk associated with committing serious criminal offences; and (c) to prevent the reinvestment of financial gain from illegal activity in further illegal activity; and (d) to assist law enforcement agencies to effectively trace— (i) property acquired by persons who engage in illegal activity; and (ii) tainted property; and (iii) benefits derived from the commission of offences; and (iv) amounts of unexplained wealth; and (e) to forfeit to the State property of, or associated with, persons who commit qualifying offences, and against whom serious drug offender confiscation orders are made, in recognition of the impact of qualifying offences on the community and the justice system; and (f) to ensure orders of other States restraining or forfeiting property under corresponding laws may be enforced in Queensland; and (g) to protect property honestly acquired for sufficient consideration by persons innocent of illegal activity from forfeiture and other orders affecting property. (3) This Act provides for 3 separate schemes to achieve its objects. (4) The scheme in chapter 2 does not depend on a charge or conviction and is administered by the commission. (5) The scheme in chapter 2A relates to the charge or conviction of particular serious offences involving drugs and is administered by the commission. (6) The scheme in chapter 3 relies on a person being charged and convicted (as defined in this Act) of a confiscation offence and is administered by the DPP. (7) Despite the similarities between the schemes, each is separate and none of the schemes are to be construed as limiting either of the other schemes, unless this Act otherwise expressly provides. 5 Act binds State (1) This Act binds all persons, including the State and, as far as the legislative power of Parliament permits, the Commonwealth and the other States. (2) Nothing in this Act makes the State, the Commonwealth or the other States liable to be prosecuted for an offence. 5A Territorial application of Act (1) This Act applies both within and outside Queensland. (2) This Act applies outside Queensland to the full extent of the extraterritorial legislative power of the Parliament. 6 Notes A note in the text of this Act is part of this Act. 7 Examples in sch 1 (1) An example in schedule 1, part 1 is an example of the practical operation of the application of the definition illegally acquired property. Note— For the definition, see section 22. The examples apply in the same way to the practical operation of the definition serious crime derived property. (2) An example in schedule 1, part 2 is an example of the practical operation of chapter 2, part 5. (3) An example in schedule 1, part 3 is an example of the practical operation of the application of the definition tainted property. Note— For the definition, see section 104. (4) An example in schedule 1, part 4 is an example of the practical operation of chapter 3, part 7, division 3. 8 Proceedings are civil, not criminal (1) This section applies to a proceeding under this Act other than a prosecution for an offence against this Act. (2) The proceeding is not a criminal proceeding. (3) Questions of fact in the proceeding must be decided on the balance of probabilities. (4) The rules of evidence applying in civil proceedings apply to the proceeding. (5) The rules of construction applying only to the criminal law do not apply in the interpretation of this Act for the proceeding. (6) The Uniform Civil Procedure Rules 1999, to the extent that they are not inconsistent with this Act, apply to the proceeding. 9 Orders under this Act not a sentence An order under this Act requiring the payment of an amount or imposing a penalty, other than for a conviction for an offence against this Act, or restraining or forfeiting property, is not a punishment or sentence for any offence. 10 Operation of other laws not affected Nothing in this Act limits or restricts the operation of any other law providing for the forfeiture of property. 11 Interstate operation of particular orders (1) For the purpose of enabling a restraining order, a forfeiture order or a serious drug offender confiscation order to be registered under the corresponding law of another State, the order may be expressed to apply to property in that State. (2) An order mentioned in subsection (1) does not apply to property in another State, unless— (a) a corresponding law of the other State provides that the order has effect in the State after registration under that law; or (b) the property was movable property and was located in Queensland or another State with a corresponding law when the order took effect. 12 Proceedings by the State and meaning of appropriate officer (1) If the State may start a proceeding under this Act, the proceeding may be started for the State as follows— (a) for chapter 2 or 2A— (i) by the commission; or (ii) with the approval of the commission, by a police officer; or (b) for chapter 3 or 4, by an appropriate officer; or (c) for chapter 10, part 1, by an appropriate officer. (2) A proceeding taken by or for the State must be taken under the title "State of Queensland". (3) The DPP is the solicitor on the record for the proceeding. (4) Without limiting subsection (2), any document of the State necessary for the proceeding under a provision of this Act may be signed by a person who is an appropriate officer for that provision. (5) For this Act, appropriate officer— (a) for subsection (1)(c), chapter 2, chapter 2A or chapter 10, means— (i) the chairperson; or (ii) an authorised commission officer; or (iii) the DPP, a deputy DPP, or a lawyer appointed to assist the DPP in the performance of the DPP's functions; or (b) for subsection (1)(b), chapter 3 or chapter 4— (i) means a person mentioned in paragraph (a)(iii); or (ii) for the purposes of an application to a Magistrates Court for a forfeiture order or pecuniary penalty order and related matters—includes the commissioner of the police service or another police officer. Chapter 2 Confiscation without conviction Part 1 Preliminary 13 Explanation of ch 2 (1) This chapter enables proceedings to be started to confiscate property derived from illegal activity whether or not a person who engaged in the relevant activity has been convicted of any offence. (2) Also, this chapter enables proceedings to be taken to confiscate property derived from a serious crime related activity even though the person who engaged in the relevant activity has not been identified. (3) The chapter enables the Supreme Court, as a preliminary step, to make a restraining order preventing property, whether the property of the person who engaged in the relevant illegal activity or the serious crime derived property of someone else, being dealt with without the court's leave. (4) The court must make a forfeiture order confiscating the property (unless it is not in the public interest to make the order) if it finds it is more probable than not that— (a) the person whose suspected serious crime related activity was the basis of the relevant restraining order engaged in a serious crime related activity; or (b) the property is serious crime derived property because of a serious crime related activity of a person, even though a particular person suspected of having engaged in the serious crime related activity can not be identified. (5) The court may also make a proceeds assessment order against a person who has engaged in a serious crime related activity, requiring the person to pay to the State the amount the court decides is the value of proceeds derived from the person's illegal activity over a period of up to 6 years before the application for the order is made. (6) The chapter also enables the court to make an unexplained wealth order against a person, requiring the person to pay to the State an amount worked out under section 89L(2) or (3). (7) The amount payable under the proceeds assessment order or unexplained wealth order may be recovered as a debt payable to the State. (8) The chapter contains other ancillary provisions including provisions giving persons opportunities to have lawfully acquired property excluded from the effect of restraining orders and forfeiture orders. 14 Application of ch 2 Subject to the limitation period imposed under section 58, this chapter applies in relation to illegal activity or serious crime related activity whether happening before or after the commencement of this section. Part 2 Interpretation Division 1 References to relevant offences 15 Meaning of illegal activity An illegal activity is an activity that is— (a) a serious crime related activity; or (b) an act or omission that is an offence against the law of Queensland or the Commonwealth; or (c) an act or omission committed outside Queensland that— (i) is an offence against the law of the place in which it is committed; and (ii) would be an offence mentioned in paragraph (b) if it were committed in Queensland. Note— This definition applies to the whole Act. See the dictionary. 16 Meaning of serious crime related activity and external serious crime related activity (1) Anything done by a person that was, when it was done, a serious criminal offence, is a serious crime related activity. (2) Subsection (1) applies whether or not the person has been charged with the offence or, if charged— (a) has been tried; or (b) has been tried and acquitted; or (c) has been convicted, even if the conviction has been quashed or set aside. (3) An external serious crime related activity is a serious crime related activity arising out of an offence under the law of the Commonwealth or a place outside Queensland, including outside Australia, that, if the offence had been committed in Queensland, would be a serious criminal offence. 17 Meaning of serious criminal offence (1) An offence is a serious criminal offence if it is any of the following— (a) an indictable offence for which the maximum penalty is at least 5 years imprisonment; (b) an offence prescribed under a regulation for this definition; (c) an offence under the law of the Commonwealth or a place outside Queensland, including outside Australia, that, if the offence had been committed in Queensland, would be an offence mentioned in paragraph (a) or (b); (d) an ancillary offence to an offence mentioned in paragraph (a), (b) or (c) including an offence that would be an ancillary offence to an offence mentioned in paragraph (c) if the offence had been committed in Queensland. (2) In this section— indictable offence includes an indictable offence dealt with summarily. Division 2 References to proceeds, property and benefits 18 Meaning of proceeds Proceeds, in relation to an activity, includes property and another benefit derived because of the activity— (a) by the person who engaged in the activity; or (b) by another person at the direction or request, directly or indirectly, of the person who engaged in the activity. 19 Meaning of property Property of a person— (a) includes— (i) an interest the person has in a licence a person must hold to carry on a particular business; and (ii) an interest the person has in the goodwill of a business; and (iii) property of someone else that is under the effective control of the person; and (b) does not include property of the person that is under the effective control of someone else. Note— This provision is in addition to the definition of property given by the Acts Interpretation Act 1954, schedule 1. 20 Meaning of effective control of property (1) Property may be under a person's effective control even if— (a) the person does not have a direct or indirect right, power or privilege over, or in relation to, the property; or (b) the person does not otherwise have an interest in the property. (2) Regard may be had to all relevant matters in deciding— (a) whether or not property is under a person's effective control; or (b) whether or not there are reasonable grounds to suspect that property is under a person's effective control. (3) Matters to which regard may be had include, for example— (a) shareholdings in, debentures over, or directorships of, a corporation that has a direct or indirect interest in the property; and (b) a trust that has a relationship to the property; and (c) family, domestic, business and other relationships between any of the following and other persons— (i) persons having an interest in the property; (ii) corporations that have a direct or indirect interest in the property; (iii) trusts that have a relationship to the property. (4) However, property is under the effective control of a person (the first person) if the property— (a) is held by another person for the ultimate benefit of the first person; or (b) was a gift given by the first person to another person within 6 years before the making of an application for a restraining order, whether or not the gift is still in the other person's possession. (5) Subsection (6) applies if— (a) a restraining order is made for particular property because a person to whom the restraining order relates has effective control of the property; and (b) the restraining order directs the public trustee to take control of the property. (6) For the purposes of the Supreme Court's power to make further orders under this chapter in relation to the property in reliance, directly or indirectly, on a provision of this Act that mentions property that is, or is not, under the effective control of the person, the property is taken to continue to be under the effective control of the person. Note— This definition applies to the whole Act. See the dictionary. 21 Meaning of benefit and benefit derived (1) Benefit includes service and advantage. (2) A benefit derived by a person includes a benefit derived by someone else at the person's request or direction. Division 3 References to illegally acquired property and serious crime derived property Subdivision 1 Meaning of particular property related terms 22 Meaning of illegally acquired property (1) Property is illegally acquired property if it is all or part of the proceeds of an illegal activity. (2) Property is also illegally acquired property if— (a) it is all or part of the proceeds of dealing with illegally acquired property; or (b) all or part of it was acquired using illegally acquired property. (3) For subsection (2), it does not matter whether the property dealt with or used in the acquisition became illegally acquired property because of subsection (1) or subsection (2). (4) Subsections (1) and (2) apply whether or not the activity, dealing or acquisition because of which the property became illegally acquired property happened before the commencement of this section. (5) Also, if the proceeds of dealing with illegally acquired property are credited to or placed in an account, the proceeds do not lose their identity as proceeds because they are credited to or placed in an account. Note— Generally, illegally acquired property is used in this chapter, but some provisions, for example, section 28(3)(c), use the narrower expression serious crime derived property. This definition applies to the whole Act. See the dictionary. 23 Meaning of serious crime derived property (1) Property is serious crime derived property if it is all or part of the proceeds of a serious crime related activity. (2) Property is also serious crime derived property if— (a) it is all or part of the proceeds of dealing with serious crime derived property; or (b) all or part of it was acquired using serious crime derived property. (3) For subsection (2), it does not matter whether the property dealt with or used in the acquisition became serious crime derived property because of subsection (1) or subsection (2). (4) Subsections (1) and (2) apply whether or not the activity, dealing or acquisition because of which the property became serious crime derived property happened before the commencement of this section. (5) Also, if the proceeds of dealing with serious crime derived property are credited to or placed in an account, the proceeds do not lose their identity as proceeds because they are credited to or placed in an account. Subdivision 2 Provisions about continuing application of subdivision 1 to illegally acquired property and serious crime derived property 24 Definitions for sdiv 2 In this subdivision— character of property means its character as either illegally acquired property or serious crime derived property. property means property that is either of the following because of subdivision 1— (a) illegally acquired property; (b) serious crime derived property. 25 Property retains its character despite disposal Illegally acquired property or serious crime derived property retains its character—even if it is disposed of, including by using it to acquire other property—until it stops being property of that character under section 26. 26 When property stops being illegally acquired property or serious crime derived property Property stops being illegally acquired property or serious crime derived property— (a) when it is acquired by a person for sufficient consideration, without knowing, and in circumstances not likely to arouse a reasonable suspicion, that the property was illegally acquired property or serious crime derived property; or (b) when it vests in a person on the distribution of the estate of a deceased; or (c) when it is disposed of under this Act, including when discharging a pecuniary penalty order, a proceeds assessment order or an unexplained wealth order; or (d) when it is the proceeds of the disposal of property under this Act other than by sale under a condition of a restraining order or by order of the Supreme Court under section 46, 93ZP or 138; or (e) when it is acquired by Legal Aid as payment of reasonable legal expenses payable because of an application under this Act or in defending a charge of an offence; or (f) in circumstances prescribed under a regulation. 27 Property may again become illegally acquired property or serious crime derived property If property that was, but is no longer, illegally acquired property or serious crime derived property is again acquired by the person who owned it when it had that character, the property again becomes property of that character unless it is acquired by the person under an order under this Act. Note— For an example of the practical operation of this provision, see schedule 1, part 1, example 2. Part 3 Restraining orders Division 1 Application for restraining orders 28 Application for restraining order (1) The State may apply to the Supreme Court for an order (restraining order) restraining any person from dealing with property stated in the order (the restrained property) other than in a stated way or in stated circumstances. (2) The application— (a) must be supported by an affidavit of an authorised commission officer or a police officer; and (b) may be made without notice to any person to whom it relates. (3) The application may relate to all or any of the following property— (a) for property of a person suspected of having engaged in 1 or more serious crime related activities (a prescribed respondent)— (i) stated property; or (ii) a stated class of property; or (iii) all property; or (iv) all property other than stated property; or (v) all or stated property acquired after the restraining order is made; (b) stated property, or a stated class of property, of a stated person, other than a prescribed respondent; (c) stated property suspected of being serious crime derived property because of a serious crime related activity of a person, even though a particular person suspected of having engaged in the serious crime related activity can not be identified. (4) An application for a restraining order that relates to property of a person suspected of having engaged in 1 or more external serious crime related activities may be made only if the person whose property it is lives in Queensland or the property is situated in Queensland. (5) The court may refuse to consider the application until the State gives the court all the information the court requires about the application in the way the court requires. Example— The court may require additional information supporting the application to be given by affidavit or statutory declaration. 29 Affidavit (1) The affidavit of the authorised commission officer or police officer must state— (a) for property mentioned in section 28(3)(a) if the serious crime related activity involves an offence stated in schedule 2, part 1—the officer suspects the prescribed respondent— (i) has engaged in 1 or more serious crime related activities; and (ii) the reason for the suspicion; or (b) for property mentioned in section 28(3)(a) if paragraph (a) does not apply—the officer suspects the prescribed respondent— (i) has engaged in 1 or more serious crime related activities; and (ii) has derived proceeds from engaging in 1 or more of these serious crime related activities; and (iii) the reason for the suspicion; or (c) for property mentioned in section 28(3)(b)—the officer suspects the property is serious crime derived property because of a serious crime related activity of a prescribed respondent and the reason for the suspicion; or (d) for property mentioned in section 28(3)(c)—the officer suspects the property is serious crime derived property and the reason for the suspicion. (2) Also, for property of a person suspected of having engaged in 1 or more external serious crime related activities, the affidavit must state that the authorised commission officer or police officer has made due enquiry and is satisfied that no action has been taken under a law of the Commonwealth or any place outside Queensland, including outside Australia, against property of the prescribed respondent that is the subject of the application as a result of the external serious crime related activity. 30 Notice of application (1) Subject to section 30A(2), the State must give notice of the application— (a) to each person whose property the authorised commission officer or police officer whose affidavit supports the application reasonably believes is the subject of the application; and (b) to anyone else the authorised commission officer or police officer whose affidavit supports the application considers has an interest in the property the subject of the application. (2) Notice given under subsection (1)(a) must be accompanied by a copy of the affidavit supporting the application. (3) Notice given under subsection (1)(b) must include a statement informing the person that if the person asks, the person will be given a copy of the affidavit supporting the application. Division 2 Making restraining orders 30A Hearing of application (1) The Supreme Court must not hear an application for a restraining order unless satisfied the person whose property is the subject of the application has received reasonable notice of the application. (2) Despite subsection (1), the court must consider the application without notice having been given if an appropriate officer asks the court to do so. (3) However, the Supreme Court may, at any time before finally deciding the application, direct the State to give notice of the application to a stated person or class of persons in the way, and within the time, the court considers appropriate. (4) A person whose property is the subject of the application, and anyone else who claims to have an interest in the property, may appear at the hearing of the application. 31 Making restraining order (1) The Supreme Court must make a restraining order in relation to property if, after considering the application and the relevant affidavit, it is satisfied there are reasonable grounds for the suspicion on which the application is based. (2) However, the court may refuse to make the order if— (a) the court is satisfied in the particular circumstances it is not in the public interest to make the order; or (b) the State fails to give the court the undertakings the court considers appropriate for the payment of damages or costs, or both, in relation to the making and operation of the order. (3) The commission or, if the application is made by a police officer, the commissioner of the police service may, for the State, give the court the undertakings the court requires. (4) A restraining order does not apply to property of a person acquired after the order is made unless the order expressly states it applies to the property. (5) Also, the making of a restraining order does not prevent the person whose property is restrained under the order from giving Legal Aid a charge over the property as a condition of an approval to give legal assistance under the Legal Aid Act in relation to— (a) a proceeding under this Act; or (b) a criminal proceeding in which the person is a defendant, including any proceeding on appeal against conviction or sentence. 32 Conditions of restraining order (1) It is a condition of every restraining order that the person whose property is restrained under the order must preserve the property. (2) The Supreme Court may impose the other conditions the court considers appropriate, including, but not limited to, the following— (a) a condition about who is to have possession of the property; (b) a condition of a kind mentioned in section 33 or 34. 33 Condition about dealing with property by agreement The Supreme Court may impose a condition authorising the commission or, if the application is made by a police officer, the commissioner of the police service to agree to— (a) the disposal of the property restrained under the restraining order by its owner to enable the proceeds of the disposal to be applied to satisfy all or part of a debt payable under another order made under this Act; or (b) the application of the property by its owner to satisfy all or part of a debt payable under another order made under this Act. 34 Condition about particular payments out of restrained property (1) The Supreme Court may impose a condition providing for all or any of the following to be paid out of the property of a particular person, or a stated part of the person's property, restrained under the restraining order— (a) the person's reasonable living expenses and reasonable business expenses; (b) the reasonable living expenses of any of the person's dependants; (c) a stated debt incurred in good faith by the person. (2) Subsection (1) is the only provision of this chapter under which provision may be made for the payment of expenses or a debt mentioned in subsection (1). (3) Also, subsection (1) applies only if the Supreme Court is satisfied— (a) the person can not meet the expenses or debt out of property that is not restrained under the order and the person has no source of income to meet the expenses or debt; and (b) the property from which the expenses or debt are to be paid is not illegally acquired property. (4) Further, subsection (1) does not authorise the imposition of a condition providing for the payment of a person's legal expenses that are payable because— (a) the person is a party to a proceeding under this Act; or (b) the person is a defendant in a criminal proceeding, including any proceeding on appeal against conviction or sentence. 35 Restraining order may direct public trustee to take control of property If the Supreme Court considers the circumstances require it, the court may, in a restraining order or a later order, direct the public trustee to take control of some or all of the property restrained under the order. 36 Duration of restraining order (1) A restraining order is in force for 28 days after it is made. (2) Despite subsection (1), a restraining order continues in force after the end of the 28 days if— (a) before the end of the 28 days, an application for any of the following is made but the application has not been decided— (i) a forfeiture order for the restrained property; (ii) a proceeds assessment order against the person whose property is restrained under the restraining order; (iii) an unexplained wealth order against the person whose property is restrained under the restraining order; or (b) there is an unsatisfied proceeds assessment order or unexplained wealth order in force against the person whose suspected serious crime related activities were the basis of the restraining order; or (c) the order continues in force because of an order of the Supreme Court under section 54. Division 3 Making other orders 37 Supreme Court may make other orders (1) The Supreme Court may make the other orders in relation to a restraining order the court considers appropriate, including, but not limited to, orders mentioned in sections 38 and 38A. (2) However, section 38(1)(f) is the only provision of this chapter under which provision may be made for the payment of legal expenses that are expenses payable because— (a) the person is a party to a proceeding under this Act; or (b) the person is a defendant in a criminal proceeding, including any proceeding on appeal against a conviction or sentence. (3) The court may make an order under this section— (a) when making the restraining order or, on application, at a later time; and (b) whether or not it affects a person whose property is restrained under the restraining order. (4) Any of the following may apply for an order, other than an investigation order, under this section— (a) the State; (b) a person whose property is restrained under the restraining order; (c) if the restraining order directs the public trustee to take control of restrained property under the restraining order—the public trustee. (5) Another person may apply for an order, other than an investigation order, under this section with the Supreme Court's leave. (6) An applicant under subsection (4) must give notice of the making of the application to each other person who may apply under subsection (4) for an order under this section. (7) An applicant under subsection (5) must give notice of the making of the application to each person who may apply under subsection (4) for an order under this section. (8) The State may apply for an investigation order. (9) The State must give notice of an application under subsection (8)— (a) to the person to whom the order is to be directed if the order is to be made under section 38A(1)(a), (b), or (c); or (b) to the person whose property is to be seized if the order is made under section 38A(1)(d). (10) Subsections (6), (7) and (9) do not apply to an application for an order under this section made in a proceeding on an application for a restraining order that is made without notice to any person to whom it relates. (11) Also, subsection (9) does not apply to an application for an investigation order of which notice does not have to be given because of section 37A(2). 37A Hearing of application (1) The Supreme Court must not hear an application for an order under section 37 unless satisfied the person who is, or whose property is, the subject of the application has received reasonable notice of the application. (2) Despite subsection (1), the court must consider an application for an investigation order without notice having been given if the DPP asks the court to do so. (3) However, the Supreme Court may, at any time before finally deciding the application, direct the State to give notice of the application to a stated person or class of persons in the way, and within the time, the court considers appropriate. (4) A person who is, or whose property is, the subject of the application, and anyone else who claims to have an interest in the property, may appear at the hearing of the application. 38 Administration orders Supreme Court may make (1) The court may make any of the following orders under section 37 (each an administration order)— (a) an order varying the property restrained under the restraining order; (b) an order imposing additional conditions on the restraining order or varying a condition of the order; (c) an order about the performance of an undertaking given in relation to the restraining order for the payment of damages or costs; (d) if the restraining order directs the public trustee to take control of property, an order— (i) regulating the way the public trustee may perform functions under the restraining order; or (ii) deciding any question about the property, including a question affecting the liabilities of the owner of the property or the functions of the public trustee; (e) an order requiring a person whose property is restrained under the restraining order to do anything necessary or convenient to bring the property within the State; (f) an order for the payment to Legal Aid, from property restrained under the restraining order, of expenses payable by the person whose property is restrained because— (i) the person is a party to a proceeding under this Act; or (ii) the person is a defendant in a criminal proceeding, including any proceeding on appeal against conviction or sentence. (2) A person must not contravene an order mentioned in subsection (1)(e). Maximum penalty—100 penalty units or 2 years imprisonment. 38A Investigation orders Supreme Court may make (1) Also, the court may make any of the following orders under section 37 (each an investigation order)— (a) an order (examination order) requiring a person whose property is restrained under the restraining order or a stated person to attend for examination on oath before the court or a court officer about the following— (i) the affairs of any person whose property is restrained under the restraining order; (ii) the nature and location of any property of a person whose property is restrained under the restraining order; (iii) the nature and location of any property restrained under the restraining order that the applicant for the order reasonably suspects is serious crime derived property; (b) an order (also an examination order) requiring the spouse of a person whose property is restrained under the restraining order to attend for examination on oath before the court or a court officer about the spouse's affairs, including the nature and location of property in which the spouse or the person has an interest; (c) an order (property particulars order) directing any of the following to give to the commission within a stated time a sworn statement of particulars of, or of dealings with, any property (whether or not the restrained property) as the court considers appropriate— (i) a person whose property is restrained under the restraining order; (ii) a person whose property the restrained property was at any time before the restraining order was made; (iii) if the person mentioned in subparagraph (i) or (ii) is or was a corporation—an executive officer of the corporation; (d) an order (property seizure order) requiring or authorising a commission officer or a police officer to seize property restrained under the restraining order. Note— See sections 43 and 44 for the general effect of a property seizure order. (2) An order mentioned in subsection (1)(d) may state the powers the commission officer or police officer may exercise for giving effect to the order. (3) Subsection (4) applies if an examination order is made without notice of the application for the order being given to a person required to attend for examination. (4) The examination must not be conducted less than 7 days after the day on which the examination order is made, unless the court considers it appropriate for the examination to be conducted at an earlier time. Division 4 Provisions about particular orders Subdivision 1 Examination orders 39 Court officer's power to conduct examinations (1) This section applies if a court officer conducts an examination under an examination order. (2) The court officer constitutes, and may exercise all the jurisdiction and powers of, the court. (3) However, the court officer may not exercise any power of the court to punish for contempt. 39A Time and place of examination The examination of a person must be conducted at the time and place stated in the examination order. 39B Examination to take place in private (1) The examination must take place in private. (2) The court or court officer may give directions about who may be present during the examination, or during a part of it. (3) These people are entitled to be present at the examination— (a) a lawyer of the person being examined; and (b) an appropriate officer; and (c) a commission officer; and (d) a lawyer representing an appropriate officer or a commission officer; and (e) any person who is entitled to be present because of a direction under subsection (2). 39C Role of the examinee's lawyer The lawyer of the person being examined may, at the times during the examination that the court or court officer decides— (a) address the court or court officer about matters on which the person has been examined; and (b) examine the person about matters on which the person has been examined. 39D Recording evidence (1) The court or court officer must ensure that, if practicable, evidence given at an examination in Queensland is recorded under the Recording of Evidence Act 1962 or recorded in another way and authenticated by the court or court officer. (1A) Subsection (1) applies despite the Recording of Evidence Act 1962, section 5. Note— The Recording of Evidence Act 1962, section 5, requires evidence given in a legal proceeding to be recorded under that Act, subject to any direction given by the court in which, or judicial person before whom, the legal proceeding is being taken. (2) The court or court officer must authenticate and sign any deposition or other recording. (3) If evidence given at an examination is recorded in a deposition, it must— (a) contain, in question and answer form, the evidence of the person examined; and (b) be transcribed and read over by or to the person in the court's and court officer's presence and in the presence of the parties who wish to attend; and (c) be signed by the person, or, if the person refuses to sign the deposition, by the court or court officer for the person. (4) The court or court officer may impose on the person being examined the conditions (if any) that the court or court officer reasonably considers necessary to prevent improper disclosure of the record. 40 Privilege—examination order (1) A person examined under an examination order is not excused from answering a question, or from producing a document or other thing, on the ground that— (a) answering the question or producing the document may tend to incriminate the person or make the person liable to a forfeiture or penalty; or (b) producing the document would be in breach of an obligation, whether imposed by an enactment or otherwise, of the person not to disclose the existence or contents of the document; or (c) answering the question or producing the document would disclose information that is the subject of legal professional privilege. (2) A statement or disclosure made by a person in answer to a question asked in an examination under an examination order, or a document or other thing produced in the examination, is not admissible against the person in any civil or criminal proceeding, other than— (a) a proceeding about the false or misleading nature of the statement or disclosure; or (b) a proceeding on an application under this Act; or (c) a proceeding for the enforcement of a confiscation order; or (d) for a document or other thing, a proceeding about a right or liability it confers or imposes. 41 Offence to contravene examination order A person who is required to attend an examination under an examination order under this part must not— (a) fail to attend as required by the order, unless the person has a reasonable excuse; or (b) fail to attend from day to day until the conclusion of the examination, unless the person has a reasonable excuse; or (c) fail to take an oath for the purpose of the examination; or (d) fail to answer a question that the person is directed to answer by the court or court officer; or (e) make a statement in the examination that is false or misleading in a material particular. Maximum penalty—100 penalty units or 2 years imprisonment. 41A Use and dissemination of examination information (1) This section applies to a statement, disclosure, document or other thing mentioned in section 40(2) (examination information). (2) The DPP or the commission may give the examination information to— (a) a corresponding entity to help the entity to obtain other evidence or other information (derived evidence) that may be relevant to the enforcement of a corresponding law; or (b) an entity of the State, another State or the Commonwealth that has a function of investigating or prosecuting offences to help the entity to obtain other evidence or other information (derived evidence) that may be relevant to the investigation or prosecution of an offence. (3) The giving of examination information under subsection (2), its use to obtain derived evidence or the admissibility of the derived evidence in a proceeding, including a prosecution for an offence, is unaffected by— (a) the fact that the examination information was obtained because of section 40 and subject to section 39B; or (b) any duty of confidentiality owed to the person from whom the examination information was obtained; or (c) the objects of this Act or the particular purpose for which the examination information was obtained. (4) In this section— entity of the State, another State or the Commonwealth includes a law enforcement agency established under a law of the State, another State or the Commonwealth. Subdivision 2 Property particulars orders 42 Privilege—property particulars order (1) A person directed under a property particulars order to give a statement to the commission or the public trustee is not excused from giving the statement or including particulars in the statement on the ground that the statement or particulars may tend to incriminate the person or make the person liable to a forfeiture or penalty. (2) If a person gives a statement to the commission or the public trustee under a property particulars order, the statement is not admissible against the person in any criminal proceeding other than a proceeding about the false or misleading nature of the statement. Subdivision 3 Property seizure orders 42A Offence to contravene property particulars order A person directed under a property particulars order to give a statement to the commission within a stated period of time— (a) must comply with the direction unless the person has a reasonable excuse; and (b) must not make a statement that is false or misleading in a material particular. Maximum penalty—100 penalty units or 2 years imprisonment. 43 If property seizure order directed to commission officer (1) This section applies if the Supreme Court makes a property seizure order that is directed to a commission officer. (2) The order— (a) is taken to be a search warrant issued by a Supreme Court judge under the Crime and Corruption Act 2001 in relation to confiscation related evidence as defined under that Act; and (b) is taken to authorise a commission officer to exercise search warrant powers under the Crime and Corruption Act 2001, section 92, including search warrant powers mentioned in section 92(2) and (3) or stated in the order, to the extent necessary for giving effect to the order. (3) Property seized under the order is taken to have been seized under the Crime and Corruption Act 2001. (4) The Crime and Corruption Act 2001, section 93 applies to the order as if the order were a search warrant. (5) It is sufficient compliance with the Crime and Corruption Act 2001, section 93(1) for the commission officer to give the occupier of the place a copy of the order or, if the occupier of the place is not present, to leave the copy in a conspicuous place. (6) The Crime and Corruption Act 2001, sections 113 and 114 do not apply to property seized under the order. 44 If property seizure order directed to police officer (1) This section applies if the Supreme Court makes a property seizure order that is directed to a police officer. (2) The order— (a) is taken to be a search warrant issued by a Supreme Court judge under the Police Powers and Responsibilities Act 2000 in relation to confiscation related evidence as defined under that Act; and (b) is taken to authorise a police officer to exercise search warrant powers under the Police Powers and Responsibilities Act 2000, section 157, including search warrant powers mentioned in section 157(2) and (3), to the extent necessary for giving effect to the order. (3) Property seized under the order is taken to have been seized under the Police Powers and Responsibilities Act 2000. (4) The Police Powers and Responsibilities Act 2000, section 158 applies to the order as if it were a search warrant. (5) It is sufficient compliance with the Police Powers and Responsibilities Act 2000, section 158(1) for the police officer to give the occupier of the place a copy of the order or, if the occupier of the place is not present, to leave the copy in a conspicuous place. Note— The Police Powers and Responsibilities Act 2000 provisions about applications for the return of things in the possession of the police service generally do not apply to things seized under a property seizure order. Division 5 Notice of restraining order and other orders 45 Notice of restraining order and other orders (1) This section applies if the Supreme Court— (a) makes a restraining order; or (b) makes another order under division 3 in relation to a restraining order. (2) As soon as practicable after the order is made, the commission must give each person whose property is restrained under the order and anyone else who is affected by the order a copy of the order. (2A) However, under subsection (2) the commission is not required to give a person whose property is restrained under a restraining order a copy of, or notice of, an investigation order made under section 38A(1)(a), (b) or (c) directed to another person. (3) If the order directs the public trustee to take control of property, the commission must give the public trustee a copy of the order. (4) However, if the application was made for the State by the commissioner of the police service, the commissioner of the police service— (a) must give the commission a copy of the order; and (b) must give the notice required to be given under subsection (2) or (3). (5) A restraining order, or another order under division 3, does not stop having effect only because a person required to be served under subsection (2) has not been served with a copy of the order. Division 6 Sale of restrained property 46 Supreme Court may order sale of restrained property (1) This section applies to restrained property under a restraining order only if the State applies to the Supreme Court for a forfeiture order for the property and the application has not been decided. (2) The State may, when applying for the forfeiture order or at a later time, apply to the Supreme Court for an order directing the public trustee to sell all or part of the restrained property (application property). (3) The State must give notice of the application to each person who has an interest in the application property. (4) The Supreme Court may make the order if the court is satisfied, on evidence of the public trustee or otherwise— (a) the application property may deteriorate or lose value before the forfeiture order application is decided; or (b) the cost of controlling the application property would be more than the value of the property if it were disposed of after a forfeiture order was made. (5) The proceeds of a sale under an order under this section are taken to be restrained under the restraining order applying to the application property. Division 7 Exclusion of property from restraining order Subdivision 1 Application by prescribed respondent 47 Supreme Court may exclude prescribed respondent's property from restraining order (1) The prescribed respondent under the restraining order may apply to the Supreme Court to amend the order to exclude particular property of the prescribed respondent from the order. (2) The application must be made before the State applies for a forfeiture order to be made. Note— After the State applies for a forfeiture order, an application by a prescribed respondent may be made under section 65 or 66. (3) The prescribed respondent must give a written notice of the making of the application, the grounds for the application and the facts relied on to the State and anyone else who has an interest in the property. (3A) The grounds for the application and the facts relied on must be stated fully in the notice. (4) The State must be a party to the application. (5) Anyone else who is given notice of the application may appear at the hearing of the application. (6) If the State proposes to oppose the application, the State must give the applicant notice of intention to oppose the application. (7) The State must give the applicant notice of the grounds for opposing the application. (8) However— (a) the State is not required to give the notice; and (b) the application may not be heard; until the DPP has had a reasonable opportunity to examine the applicant or a relevant person under an examination order, whether or not an examination order has already been made. (9) In this section— relevant person means a person other than the applicant who, on examination under an examination order, may be able to give evidence relevant to the application. 48 When Supreme Court may exclude prescribed respondent's property (1) The Supreme Court may exclude the prescribed respondent's property from the order if— (a) it is satisfied it is more probable than not that the property to which the application relates is not illegally acquired property; and (b) the property is unlikely to be required to satisfy a proceeds assessment order or unexplained wealth order. (2) Also, the Supreme Court may exclude the prescribed respondent's property from the order if it is satisfied it is in the public interest to amend the order in the particular circumstances. (3) The Supreme Court may require the prescribed respondent to give security satisfactory to the court to meet any liability that may be imposed on the prescribed respondent under this Act. Subdivision 2 Application by person other than prescribed respondent 49 Supreme Court may exclude other property from restraining order (1) If the Supreme Court makes a restraining order, a person other than the prescribed respondent (the applicant) whose property is restrained under the order may apply to the court to amend the order to exclude the applicant's property from the order. (2) The applicant must give a written notice of the making of the application, the grounds for the application and the facts relied on to the State and anyone else who has an interest in the property. (2A) The grounds for the application and the facts relied on must be stated fully in the notice. (3) The State must be a party to the application. (4) Anyone else who is given notice of the application may appear at the hearing of the application. (5) If the State proposes to oppose the application, the State must give the applicant notice of intention to oppose the application. (6) The State must give the applicant notice of the grounds for opposing the application. (7) However— (a) the State is not required to give the notice; and (b) the application may not be heard; until the DPP has had a reasonable opportunity to examine the applicant or a relevant person under an examination order, whether or not an examination order has already been made. (8) In this section— relevant person means a person other than the applicant who, on examination under an examination order, may be able to give evidence relevant to the application. 50 When Supreme Court may exclude applicant's property (1) The Supreme Court may exclude the applicant's property from the order if it is satisfied the applicant acquired the property— (a) in good faith and for sufficient consideration; and (b) without knowing, and in circumstances not likely to arouse a reasonable suspicion, that the property was illegally acquired property. (2) The Supreme Court may make the order only to the extent to which the interest in the property concerned was not, when it first became illegally acquired property, acquired using the proceeds of an illegal activity. (3) In addition, the Supreme Court may exclude the applicant's property from the order if it is satisfied it is in the public interest to amend the order in the particular circumstances. (4) The Supreme Court may require the applicant to give the undertakings about the applicant's property the court considers appropriate. Division 7A Revocation of restraining order 50A Application to revoke restraining order (1) A person whose property is the subject of a restraining order and who was not given notice of the application for the restraining order may apply to the Supreme Court to revoke the order. (2) The application must be made within 28 days or, with the approval of the court, the further period, of not more than 3 months, after the person is notified of the making of the restraining order. (3) The applicant must give to the State written notice of the making of the application and the grounds for the application. (4) The restraining order remains in force until the court revokes the order or the order otherwise stops having effect. (5) The State may present additional material to the court relating to the application to revoke the restraining order. (6) After considering the application, the court may revoke the restraining order if satisfied, on the facts before the court, there would be no basis for making a restraining order in relation to the property. 50B Notice of revocation of restraining order (1) On the revocation of a restraining order under section 50A, the State must give notice of the revocation to— (a) each person whose property was restrained under the order, if known; and (b) anyone else who was affected by the order. (2) Subsection (1) does not require the State to notify the applicant for the revocation of the restraining order of the revocation of the order. Division 8 Other provisions about restraining orders 51 Recording of restraining order (1) This section applies if a restraining order applies to property of a particular kind and a law, whether or not a law of the State, provides for the registration of title to, an interest in, or a charge over, property of that kind. (2) On the application of the commission or the commissioner of the police service, the authority responsible for administering the law must record the particulars of the relevant restraining order in the register kept under the law. (3) Subsection (2) applies even though a relevant document of title is not produced to a registrar or any other person. (4) Unless the contrary is proved, a person who later deals with property for which particulars are recorded under subsection (2) is taken to have had notice of the relevant restraining order. (5) If the Land Title Act 1994 applies to the property, the commission or the commissioner of the police service may lodge, and the registrar of titles must register, a caveat over the property under that Act. (6) As soon as practicable after the relevant restraining order stops having effect in relation to the property— (a) the commission or the commissioner of the police service must apply for cancellation of the record of the order; and (b) the authority responsible for administering the relevant law must take the steps necessary to cancel the record. (7) Also, if the commission or the commissioner of the police service lodged a caveat over the property under subsection (5), as soon as practicable after the relevant restraining order stops having effect in relation to the property, the commission or the commissioner of the police service must withdraw the caveat. 52 Contravention of restraining order (1) A person who does, or attempts to do, an act or makes an omission in relation to restrained property in contravention of a restraining order commits a crime. Maximum penalty— (a) for a financial institution—2,500 penalty units or the value of the restrained property, whichever is the higher amount; or (b) otherwise— (i) 1,000 penalty units or the value of the restrained property, whichever is the higher amount; or (ii) 7 years imprisonment. (2) It is a defence to a charge of an offence against subsection (1) for the person to prove that the person had no notice the property was restrained under a restraining order and no reason to suspect it was. (3) However, the defence under subsection (2) is not available to the extent the restrained property is— (a) a motor vehicle, boat or outboard motor the subject of a restraining order registered under the Personal Property Securities Act 2009 (Cwlth); or (b) land over which a caveat in relation to the restraining order is registered under the Land Title Act 1994. Note— See section 51(5) for the obligation of the registrar of titles to register the caveat. (4) Subsection (1) does not prevent the prosecution and punishment of a person who does, or attempts to do, an act or makes an omission mentioned in that subsection for contempt of court or another offence under this Act or another Act. (5) A dealing with property in contravention of subsection (1) is void unless the dealing was in favour of a person who— (a) did not know, and could not reasonably be expected to have known, that the property was restrained under a restraining order; and (b) acted in good faith; and (c) provided sufficient consideration for the dealing. (6) Subsection (5) applies whether or not any person is convicted of an offence in relation to the restraining order. 53 Restraining order does not prevent other action under this Act A restraining order does not prevent the enforcement of any other order made under this Act against restrained property under a restraining order. 54 Effect of dismissal of particular applications on restraining order (1) This section applies if, while a restraining order is in force over property, the Supreme Court dismisses an application for— (a) a forfeiture order for the property; or (b) a proceeds assessment order against the person whose property is restrained under the restraining order; or